HB 169: Legislative Control Over Executive Emergency Powers

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The COVID-19 pandemic has prompted a slew of executive orders and exercise of governmental powers across the country, including in Utah. Declaring an emergency in Utah, by law, allows the Governor to assume various additional powers, including suspending laws passed by the Legislature. Such orders also, for a public health crisis, empower public health officials to wield near-dictatorial powers to control people and property without due process.

The Utah Legislature elected not to renew one of Governor Herbert’s executive orders last year, with the intention to have the order expire along with the executive branch’s exercise of its increased powers. However, Herbert circumvented the Legislature on tenuous legal grounds by simply issuing a brand new emergency declaration that effectively duplicated the previous one.

This allowed the Governor to basically ignore the Legislature and continue to exercise augmented powers. The existing emergency laws contemplated short-term emergencies that needed a dynamic response from the executive branch where the Legislature would not have time to review, discuss, and reform laws as necessary. However, a prolonged pandemic and the government’s response to it does not meet these criteria at all. The Legislature clearly intended for the emergency powers to expire, and the Governor basically ignored them and continued claiming these powers as his own.

Representative Brady Brammer is sponsoring House Bill 169 to address this problem. This bill applies to state and local governments and makes clear that the legislative branch can limit, restrict, or revoke such orders. Local legislative bodies (city or county councils) can do this for their respective executive branches, and the Legislature can do it for state or local executive officers.

The bill also states that if the Legislature terminates or decides not to extend a state of emergency, then the governor may not declare another one in response to the same disaster or occurrence—directly addressing the problematic position of Governor Herbert’s administration last fall in ignoring the Legislature.

There are other areas of reform that are needed which HB 169 does not currently address. We believe these reforms are also necessary:

1. The governor’s ability to declare a state of emergency should be bifurcated into two types. One type would satisfy federal requirements to unlock federal funding (which was the stated purpose of one of Governor Herbert’s declarations) but not trigger any kind of expanded executive powers. The second type would be an additional level that would empower the executive branch with added powers (such as suspending laws, issuing orders, etc.) during brief periods of acute emergency that require a dynamic response. This way, the desire for federal funding would not trigger augmented executive power.
2. The powers of public health officials needs to be strongly curtailed so that they cannot control people and property. These officials should only have an advisory capacity to elected officials.
3. If the Legislature does decide to extend a state of emergency, then an economic analysis should be performed and published to reasonably determine, and publicly disclose, the anticipated impact of continuing the executive order mandates associated with the existing emergency declaration.
4. If a chief executive does not intend to criminally enforce the violation of an order during a state of emergency, then they should be required to disclose this information in any and all communications regarding the order.
5. Any order issued during a state of emergency should first be reviewed by the city/county attorney, or Attorney General’s office, to ensure that the proposed order:
   • does not violate any constitutional protections;
   • is narrowly tailored to restrict only specific activities that have a reasonable likelihood of spreading disease; and
   • applies criminal consequences only to behaviors that reasonably cause serious bodily injury or death.